Opinion
(Decided 5 May, 1899.)
Referee's Report — Discretion and Power of the Judge — The Code, Sections 422 and 423
1. The judge, in his discretion, may set aside a reference after the report is filed, and proceed and try the case.
2. The court retains the cause and its jurisdiction in every case of reference, with power to review and reverse the conclusions of law of the referee; and a discretion to modify or set aside the report, and its ruling in the latter respect, is not reviewable unless it appears that such discretion has been abused.
ACTION to enforce a contract for payment of money alleged to be due to the testator of plaintiff from testator of defendant, instituted 20 November, 1886, in BUNCOMBE.
J. W. Summers and T. H. Cobb for plaintiff. (584)
Moore Moore, Shepherd Busbee, and Burwell, Walker Cansler for defendant.
This action was referred, by consent, and on the trial day the plaintiff made affidavit that he could not try, stating his reasons. The referee required him to proceed to trial, and the plaintiff's counsel stated that, in justice to his client, he was driven to consent to a nonsuit. The referee filed his report, and the defendant made a motion that judgment of nonsuit be entered by his Honor, which was refused.
His Honor, upon the facts found in the exercise of his discretion, ordered that the plaintiff be relieved from his consent to nonsuit before the referee, and that the cause be remanded to the referee to proceed according to the original order.
Defendant's exception is, that the Court had no power to set aside the nonsuit entered before the referee, and relies upon Boyden v. Williams, 80 N.C. 95, and Twitty v. Logan, 86 N.C. 712. Each of those cases involved a question of excusable neglect in allowing judgment to be entered at a term of the court. The law of those cases has no application to the facts in the present case. It is a first principle that the law must fit the facts.
The powers and duties of a referee are found in The Code, sec. 422, and Jones v. Beaman, 117 N.C. 259. The Code, sec. 423, provides that the referee shall make his report to the court in which the action is pending, and "either party may move the judge to review such report and set aside, modify or confirm the same, in whole or in part, (585) and no judgment shall be entered on any reference, except by order of the judge."
In Boushee v. Surles, 79 N.C. 51, it was held not to be error when the judge in his discretion sets aside the reference after the report was filed, and proceeded and tried the case. See also Earp v. Richardson, 75 N.C. 84.
Under section 423 of The Code, and these authorities, we can have no doubt of the power of the judge to make the orders set out in the record, and above stated. The court retains the cause and its jurisdiction in every case of reference, with power to review and reverse the conclusions of law of the referee, and a discretion to modify or set aside the report, and his ruling in the latter respect is not reviewable unless it appears that such discretion has been abused.
AFFIRMED.
Cited: Brackett v. Gilliam, 125 N.C. 382; Baggett v. Wilson, 152 N.C. 182; Rogers v. Lumber Co., 154 N.C. 109; Lance v. Russell, 157 N.C. 453; Dumas v. Morrison, 175 N.C. 434; Caldwell v. Robinson, 179 N.C. 522.